Self-Defense in Healthcare, Part 1: Can Caregivers Use Self-Defense?
Imagine you are a nurse in the Emergency Department walking to a room to assess a new patient that had been brought into your pod by a triage nurse. You see a slightly disheveled female, sitting on the gurney while anxiously wringing her hands. You greet the new patient and introduce yourself. You ask her what you can help her with. She does not respond to you and stares blankly ahead. You ask her again. Still, no response. You call her by the name you see in the chart, and ask her if she's okay. She briefly glances up at you and her face contorts into wide-eyed rage. She explodes off the gurney and manages to land two blows with her right fist to your neck and cheek. She pushes you backward out of the room with one hand grabbing your scrub top while slapping your shoulder with the other, all the while shouting unintelligible words through pursed lips and spittle. Dazed, you are surprised this is actually happening. You gather some of your wits, yell repeatedly, "stop, Stop, STOP!," and push back on the patient while face to face, feeling her hot breath and the wetness of her saliva on your face. Using your body weight and leverage, you manage to get the patient back into the room, where it will be easier to contain her violent behavior. With her still clinching your scrub top, you manage to get the patient on the gurney, pushing her shoulders into the mattress. She is flailing her arm and legs now, trying to make contact with anything she can. You feel her teeth on your wrist and the start of biting pressure. You yell, STOP and reflexively slap her face with an open hand. This briefly stops the biting, but she does it again, this time with more force. You again yell, STOP and slap her again. She again stops and at the same time, a coworker comes into the room and helps to restrain the patient's legs. More staff arrive and help with restraining the patient, who violently resists. Once your fellow staff seem to have control, you exit the room to take a breather. In the bathroom, you see redness to the left side of your face and neck, with some swelling starting to develop on your left cheek. You grab some ice for your face and get back to work. Later in the shift, you fill out the violent incident report and the patient, who is now calm, apologizes for hitting you.
A day later, you are called into the manager's office. You are being placed on administrative leave so they can investigate patient abuse. When you slapped the patient's cheek while she was biting you, you left red marks on the patient's face. A coworker reported that they felt you were too aggressive towards the patient. You tell them your side of the story and that it was just you and her in the room and you were in fear of not only your own life and safety, but for the safety of others that were in the emergency room that day. No one came to help for what seemed like minutes. You felt you had no choice but to strike the patient to get her to stop biting you. Having fear of liability and a lack of policy to address situations like this, they tell you that, "We don't treat patients that way, even if they are hurting us." They add, "That was not an approved technique that was taught in the violence prevention class."
After a couple days at home while anxious and worried sick about your job, you receive a phone call from HR telling you that your employment is terminated. A 25-year career of dedicated, professional emergency nursing at this one hospital; done. In a snap.
I imagine situations like this are happening pretty often. We just don't hear about them. I hear of hospitals telling caregivers that they cannot respond to violence with violence, no matter what the patient is doing to you. Some policies even prohibit security staff from touching a patient at all.
Some people might argue that the scenario above is not self-defense. Okay, I can understand. Even if the patient had diminished capacity, it doesn't change the caregiver's right to protect their own life in the moment. But let's say that an expert has reviewed the event and says it is legitimate self-defense. Let's take some time in the next couple newsletters to dig into why.
Self-defense is allowed as public policy, meaning, someone can use physical violence to stop or prevent bodily harm or death to themselves or a third person. Every state allows for this.
But can we use reasonable and proportional self-defense in healthcare?
Yes we can.
There is really no case law that sets a precedent that hospital or healthcare workers cannot use self-defense against patients or other people in the hospital. Why is that? In my experience, it is because those lawsuits against healthcare employers get settled out of court. Which, if you think about it, is smart on the employer's side because you wouldn't want to take that to a trial by jury. The employer will definitely come out looking like the bad guy. But I'm still holding out hope that one of these cases will be decided by a jury, so then we can have some solid case law.
The closest case law we have is Ray vs Wal-Mart Stores. In brief, Wal-Mart had a policy that employees were required to disengage from a violent person (with or without a weapon), withdraw, and contact law enforcement. Five employees who were terminated for using self-defense sued Wal-Mart in federal court for wrongful discharge. The Utah Supreme Court decided that the public policy favoring self-defense came from the Utah Constitution, state statutes, and common law. The right of the employee to defend themselves outweighed the employer's business interests, provided that the employee had a reasonable belief in imminent threat of serious bodily harm and an inability to withdraw from the situation.
Put into the context of healthcare, sure, hospitals don't want hyper-aggressive caregivers or vigilantism. But when you're trapped and feel you have no other choice but to defend yourself, you can. It'll get sorted eventually - but at a cost no one should have to pay just for showing up to work.
Back to the above scenario. Let's say you, the nurse, take a few months to recover physically, emotionally, and spiritually. In the back of your mind, something about the whole situation just doesn't sit right. You decide to consult a lawyer. Based on the facts of the situation, the lawyer tells you that you likely have a case for unlawful discharge. You are able to scrape together some money for the retainer fee and the lawsuit is filed. Files, records, violence data, and training materials are requested, experts are consulted and depositions are completed. The lawyers talk a couple times over a couple months. In the end, the case is settled out of court. It's not millions of dollars, but enough to tide you over for a while until you get your next job.
In the next couple newsletters, we'll discuss ways to fairly treat the employee and the organization when violent situations are met with violence within the healthcare space.